Microsoft Fires Off Rebuttal To Latest Leak; Angry Letter To Eric Holder

from the at-this-point,-I'm-pretty-sure-no-one's-telling-the-complete-truth dept

The recent leak detailing Microsoft's extremely close work with US intelligence agencies seemed to contradict pre-leak statements made by the company concerning responses to data requests. Microsoft claimed it only did the minimum required by law, but the leaked documents portrayed the software giant as working in concert with the NSA and FBI to provide them with pre-encryption access to several services, including Outlook, SkyDrive and Skype.

Microsoft has responded to this leak via a blog post and a letter to Eric Holder. The blog post is a long refutation of every claim made in the leaked documents. Rather than give the agencies direct, pre-encryption access, as was stated in the leak, Microsoft claims it only provides metadata and content as requested -- and then only if Microsoft deems the request valid.

Microsoft does not provide any government with direct and unfettered access to our customer’s data. Microsoft only pulls and then provides the specific data mandated by the relevant legal demand.

If a government wants customer data – including for national security purposes – it needs to follow applicable legal process, meaning it must serve us with a court order for content or subpoena for account information.

We only respond to requests for specific accounts and identifiers. There is no blanket or indiscriminate access to Microsoft’s customer data. The aggregate data we have been able to publish shows clearly that only a tiny fraction – fractions of a percent – of our customers have ever been subject to a government demand related to criminal law or national security.

All of these requests are explicitly reviewed by Microsoft’s compliance team, who ensure the request are valid, reject those that are not, and make sure we only provide the data specified in the order. While we are obligated to comply, we continue to manage the compliance process by keeping track of the orders received, ensuring they are valid, and disclosing only the data covered by the order.
With this across the board denial of the leaked documents' contents, we're left with only a few possibilities. Either the document isn't accurate and Microsoft's statement is truthful or the statement is false and the document is the truth. Or, somewhere in between, there's a way both can be accurate (or "least untruthful"), which boils down to subjective definitions of certain words, most notably "access." Microsoft could have provided near real-time access while still only complying with court orders. Everything stored and turned over to the NSA and FBI was technically "pre-encryption," in the fact that Microsoft had unencrypted access to the data. As we haven't actually seen a court order or national security letter directed at Microsoft, it's tough to say how direct and how close to real time this access is.

Microsoft's rebuttal doesn't entirely refute the documents, however. There's no doubt it worked closely with these agencies to provide the access, content and data they were seeking, even if it was all strictly "by request." In terms of Skype, Microsoft doesn't even bother refuting the government had access to audio and video via its Prism connection. All it addresses is the statement that claimed video production had tripled "since a new capability was added" in July of 2012.
The reporting last week made allegations about a specific change in 2012. We continue to enhance and evolve the Skype offerings and have made a number of improvements to the technical back-end for Skype, such as the 2012 move to in-house hosting of “supernodes” and the migration of much Skype IM traffic to servers in our data centers. These changes were not made to facilitate greater government access to audio, video, messaging or other customer data.
These changes may not have been made to "facilitate greater government access," but that's not what the document claims. All it says is that this new capability tripled video production. Moving to in-house hosting and migrating traffic to Microsoft data centers could certainly aid in the "production" (read: harvesting) of Skype video calls. Whatever the intent, the end result was the same -- easier, faster access to Skpe data and content for intelligence agencies.

This back-and-forth is unlikely to result in establishing definitive guilt or innocence on the part of Microsoft. Either way, it's of negligible importance. The fact is that intelligence agencies are, by way of court orders and security letters, inserting themselves deeper and deeper into the underlying fabric of online communications, something that stretches much further than Microsoft.

Microsoft itself is hoping to address the larger, more problematic issue of our growing surveillance state. In addition to its blog post, the company sent a rather irate letter to Attorney General Eric Holder [pdf]. It dispenses with most of the usual diplomatic niceties and confronts the government with the damage it's doing to American citizens and American companies with its surveillance activities.
Since the initial leak of NSA documents, Microsoft has engaged constructively with the Department of Justice, the FBI, and other members of the Intelligence Community on the ground rules governing our ability to address these issues and the leaked documents publicly. We have appreciated the good faith in which the Government has dealt with us during this challenging period. But we’re not making adequate progress. When the Department and FBI denied our requests to share more information, we went to the Foreign Intelligence Surveillance Court (FISC) on June 19 to seek relief. Almost a month later, the Government is still considering its response to our motion.

Last week we requested official permission to publicly explain practices that are the subject of newly-leaked documents that refer to Microsoft and have now been misinterpreted in news stories around the world. This request was rejected. While we understand that various government agencies are trying to reach a decision on these issues, this has been the response for weeks.
This is no surprise to anyone who's attempted to obtain information or official responses from our intelligence agencies. The standard m.o. is to wait it out while chanting "grave damage to national security." But what Microsoft adds next serves as a slap in the face to those parties attempting to wait it out.
As I know you appreciate, the Constitution guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest. It’s time to face some obvious facts. Numerous documents are now in the public domain. As a result, there is no longer a compelling Government interest in stopping those of us with knowledge from sharing more information, especially when this information is likely to help allay public concerns.
In other words, "Your secrets aren't secret anymore. Get over yourselves."

At this point, only government employees who dutifully ignore what their employer tells them to ignore aren't aware of these leaked documents and their contents. If our "national security" was suffering "exceptionally grave damage" from these leaks, you'd think at least some of that damage would be noticeable. Instead, what we have is the large scale embarrassment of government officials who are now forced to explain actions that contradict the very principles they claim this country stands for -- that they say they stand for. Refusing to allow companies to discuss activities already outed by leaks is simply the most self-serving form of damage control. The threat to officials' reputations easily exceeds the threat to the security of the American public, and continuing to deny these companies an opportunity to explain their involvement does them, and the public, a disservice.

Filed Under: eric holder, fisa rulings, free speech, nsa, nsa surveillance, skype, surveillance, warrants, wiretapping
Companies: microsoft


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  1. icon
    Rich Fiscus (profile), 17 Jul 2013 @ 3:33pm

    How to read a press release

    Mad Magazine used to occasionally run a feature called, "When They Say... They Mean." With apologies to the late Bill Gaines I present my interpretation of Microsoft's non-denial denial.

    When they say... Today we have asked the Attorney General of the United States to personally take action to permit Microsoft and other companies to share publicly more complete information about how we handle national security requests for customer information. We believe the U.S. Constitution guarantees our freedom to share more information with the public, yet the Government is stopping us. For example, Government lawyers have yet to respond to the petition we filed in court on June 19, seeking permission to publish the volume of national security requests we have received. We hope the Attorney General can step in to change this situation.

    They mean... As long as this is so embarassing to high ranking government officials we will have plausible deniability. Once they figure out how to spin this we'll coordinate together to make sure we keep our stories straight. We remain confident in the ability of career bureacrats to cover their own asses which they can't do without covering ours as well.

    When they say... Until that happens, we want to share as much information as we currently can. There are significant inaccuracies in the interpretations of leaked government documents reported in the media last week.

    They mean... We're really embarrased that people found out what we were up to. We can't actually refute a single fact from the leaked documents because they're all true. Also, we don't know what else that rat bastard Snowden leaked. Since the government is giving us lots of cover right now we can at least try to control the debate.

    When they say... We have asked the Government again for permission to discuss the issues raised by these new documents, and our request was denied by government lawyers.

    They mean... We're victims here just like you. It's us against them.

    When they say... In the meantime, we have summarized below the information that we are in a position to share, in response to the allegations in the reporting:

    They mean... Our crack team of professional liars in Public Relations has come up with a 100% substance-free defense. It strongly implies a complete denial of our complicity in NSA surveillance without actually commiting to a single relevant fact. The meaning is subject to change over time to match any additional revelations. We're confident major media outlets will simply regurgitate it without any critical analysis and the public will follow along like the sheep they are. That's why we're running Microsoft and you're asking us if we want fries with that.

    When they say... Outlook.com (formerly Hotmail): We do not provide any government with direct access to emails or instant messages. Full stop.

    They mean... Technically no human has direct access to anything stored on a computer but it sure sounds like we're keeping the government away from your data doesn't it?

    When they say... Like all providers of communications services, we are sometimes obligated to comply with lawful demands from governments to turn over content for specific accounts, pursuant to a search warrant or court order.

    They mean... Let's change the subject.

    When they say... This is true in the United States and other countries where we store data. When we receive such a demand, we review it and, if obligated to we comply.

    They mean... We were just following orders.

    When they say... We do not provide any government with the technical capability to access user content directly or by itself.

    They mean... Government agents get your information remotely and access is controlled by Microsoft servers. That's how cloud services work.

    When they say... Instead, governments must continue to rely on legal process to seek from us specified information about identified accounts.

    They mean... The NSA just happened to specify "All Information from Every Account."

    When they say... Not surprisingly, we remain subject to these types of legal obligations when we update our products and even when we strengthen encryption and security measures to better protect content as it travels across the Web.

    They mean... This is not about your data. It's about our business. Government contracts account for a significant percentage of our profits and we intend to keep it that way. You don't shit where you eat.

    When they say... Recent leaked government documents have focused on the addition of HTTPS encryption to Outlook.com instant messaging, which is designed to make this content more secure as it travels across the Internet.

    They mean... See, we're doing everything we can to protect you. We really do care.

    When they say... To be clear, we do not provide any government with the ability to break the encryption,

    They mean... Seriously, let's change the subject. We are not doing what nobody accused us of doing.

    When they say... nor do we provide the government with the encryption keys.

    They mean... While we're at it, though, let's address that story about how the NSA has their own backdoor built into Windows. We didn't provide them with that. They provided it themselves. We just put it on your computer.

    When they say... When we are legally obligated to comply with demands,

    They mean... As long as they have a court order signed by a judge we have enough plausible deniability to give them whatever they ask for. Fighting for your basic Constitutional rights is a high risk, low reward proposition and it's not our job.

    When they say... we pull the specified content from our servers where it sits in an unencrypted state, and then we provide it to the government agency.

    They mean... We don't let the NSA tell our servers to give them all your data. We tell our servers to give the NSA all your data.

    When they say... Cutting through the technical details, all of the information in the recent leaked government documents adds up to two things.

    They mean... Seriously, though, that's all over your head anyway. Here's a dumbed down version even you can understand.

    When they say... First, while we did discuss legal compliance requirements with the government as reported last week, in none of these discussions did Microsoft provide or agree to provide any government with direct access to user content or the ability to break our encryption. Second, these discussions were instead about how Microsoft would meet its continuing obligation to comply with the law by providing specific information in response to lawful government orders.

    They mean... If we repeat these talking points enough most of you will convince yourselves we did nothing wrong because we're pushing the right psychological buttons. We don't need no stinking facts. We just need to give the part of your brain that wants to believe us an excuse to shout down all your reason and logic. One way to do that is repeat the same thing over and over.

    When they say... SkyDrive: We respond to legal government demands for data stored in SkyDrive in the same way. All providers of these types of storage services have always been under legal obligations to provide stored content when they receive proper legal demands. In 2013 we made changes to our processes to be able to continue to comply with an increasing number of legal demands of governments worldwide. None of these changes provided any government with direct access to SkyDrive. Nor did any of them change the fact that we still require governments to follow legal processes when requesting customer data.

    They mean... Rinse, lather, repeat.

    When they say... The process used for producing SkyDrive files is the same whether it is for a criminal search warrant or in response to a national security order, in the United States or elsewhere.

    They mean... Every government has the power to compel us to hand over information. What the US government is doing is nothing out of the ordinary if you look at it on a completely abstract and theoretical level. Of course on that level vanilla and chocolate are exactly the same because they're both flavors.

    When they say... Skype Calls: As with other services, we only respond to legal government demands, and we only comply with orders for requests about specific accounts or identifiers. The reporting last week made allegations about a specific change in 2012. We continue to enhance and evolve the Skype offerings and have made a number of improvements to the technical back-end for Skype, such as the 2012 move to in-house hosting of “supernodes” and the migration of much Skype IM traffic to servers in our data centers. These changes were not made to facilitate greater government access to audio, video, messaging or other customer data.

    They mean... How could a company that cares so much about you be colluding to violate your rights? We're not saying we didn't do exactly that, but we're hurt that you would believe it.

    When they say... Looking forward, as Internet-based voice and video communications increase, it is clear that governments will have an interest in using (or establishing) legal powers to secure access to this kind of content to investigate crimes or tackle terrorism. We therefore assume that all calls, whether over the Internet or by fixed line or mobile phone, will offer similar levels of privacy and security.

    They mean... Don't be naive. All your communications have been subject to secret surveillance since 9/11. All we're doing is complying with government policy. If you don't like it blame them.

    When they say... Even in these circumstances Microsoft remains committed to responding only to valid legal demands for specific user account information. We will not provide governments with direct or unfettered access to customer data or encryption keys.

    They mean... Pay no attention to the man behind the curtain.

    When they say... Enterprise Email and Document Storage: If we receive a government demand for data held by a business customer, we take steps to redirect the government to the customer directly, and we notify the customer unless we are legally prohibited from doing so. We have never provided any government with customer data from any of our business or government customers for national security purposes.

    They mean... If you're an enterprise customer rest assured you are still a special little snowflake. Your willingness to pay premium prices for our software and services year in and year out is the lifeblood of our company. Fighting for your rights is the fiscally responsible thing to do, and by fighting we mean sending the government to you. After that you're on your own.

    When they say... In terms of criminal law enforcement requests, we made clear in our Law Enforcement Requests Report that throughout 2012 we only complied with four requests related to business or government customers. In three instances, we notified the customer of the demand and they asked us to produce the data. In the fourth case, the customer received the demand directly and asked Microsoft to produce the data.

    They mean... After all you're going to be just as receptive to government demands as we are anyway. You know better than to argue principle or due process with agencies that can crush you on a whim.

    When they say... We do not provide any government with the ability to break the encryption used between our business customers and their data in the cloud, nor do we provide the government with the encryption keys.

    They mean... We didn't do that thing nobody accused us of to you either.

    When they say... In short, when governments seek information from Microsoft relating to customers, we strive to be principled, limited in what we disclose, and committed to transparency. Put together, all of this adds up to the following across all of our software and services:

    They mean... Now let's make sure the last thing you read is our talking points. This will probably be all you remember anyway.

    When they say... Microsoft does not provide any government with direct and unfettered access to our customer’s data. Microsoft only pulls and then provides the specific data mandated by the relevant legal demand.

    If a government wants customer data – including for national security purposes – it needs to follow applicable legal process, meaning it must serve us with a court order for content or subpoena for account information.

    We only respond to requests for specific accounts and identifiers. There is no blanket or indiscriminate access to Microsoft’s customer data. The aggregate data we have been able to publish shows clearly that only a tiny fraction – fractions of a percent – of our customers have ever been subject to a government demand related to criminal law or national security.

    All of these requests are explicitly reviewed by Microsoft’s compliance team, who ensure the requests are valid, reject those that are not, and make sure we only provide the data specified in the order. While we are obligated to comply, we continue to manage the compliance process by keeping track of the orders received, ensuring they are valid, and disclosing only the data covered by the order.

    Microsoft is obligated to comply with the applicable laws that governments around the world – not just the United States – pass, and this includes responding to legal demands for customer data. All of us now live in a world in which companies and government agencies are using big data, and it would be a mistake to assume this somehow is confined to the United States. Agencies likely obtain this information from a variety of sources and in a variety of ways, but if they seek customer data from Microsoft they must follow legal processes.

    The world needs a more open and public discussion of these practices. While the debate should focus on the practices of all governments, it should start with practices in the United States. In part, this is an obvious reflection of the most recent stories in the news. It’s also a reflection of something more timeless. The United States has been a role model by guaranteeing a Constitutional right to free speech. We want to exercise that right. With U.S. Government lawyers stopping us from sharing more information with the public, we need the Attorney General to uphold the Constitution.

    If we do receive approval to share more information, we’ll publish it immediately.

    They mean... All hail the hypnotoad. All hail the hypnotoad. All hail...

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